ALRB Sacramento Headquarters Office New Location
The Agricultural Labor Relations Board's Sacramento Headquarters Office moved to a new location effective May 1, 2013. We are now located at 1325 J Street, Suite 1900, Sacramento CA 95814-2944, across from the Sacramento Convention Center and near the Sheraton Hotel.
ALJ Issues Decision in Bud Antle, Inc., Case No. 2012-CE-007-SAL
On May 22, 2013, Administrative Law Judge James Wolpman issued his decision in Bud Antle, Inc., Case No. 2012-CE-007-SAL, et al.ALJ Decision Summary
The Administrative Law Judge (ALJ) found that Bud Antle has violated sections 1153(e) and 1153(a) by failing to supply the union with information necessary for it to process 3 grievances arising under a Memorandum of Understanding requiring the respondent to hire qualified applicants into its own harvest crews before resorting to subcontractors and provide those crews with as much work as its subcontractor crews. To substantiate its position in arbitration the union requested information about the use of subcontractors in harvests, including contracts, assigned locations, work performed, earnings, identities of contractor employees, and applications submitted by persons seeking work in Antle’s own harvest crews.
At the prehearing conference, respondent acknowledged the information was relevant, but contended that it was privileged as confidential/trade secret, and that, in any event, the information was not in its hands, but in the hands of third parties. It also contended that the information requested in connection with a fourth grievance related to conduct occurring in Arizona and was not subject to ALRB jurisdiction.
Weeks after the prehearing conference, respondent’s counsel filed an objection to the Prehearing Conference Order claiming that she had not agreed that the information sought was relevant. Her claim was denied as incorrect and unsubstantiated. Respondent then moved to modify the Prehearing Conference Order to allow it to address relevancy and other issues never raised in the prehearing conference. An order to show cause, returnable at hearing, was issued to resolve the matter. At hearing respondent offered no evidence in support of its position; instead claiming that no prejudice had occurred and it was entitled to litigate the relevancy issue as a matter of right. General Counsel asserted that the purpose of the prehearing conference was to settle and clarify issues before trial and that Respondent’s attempt to reopen a material issue weeks after it had been resolved constituted a prejudicial surprise. For those reasons and because respondent’s delay in raising the issue would likely have resulted in an unwanted and unjustified continuance of the hearing, the ALJ refused to reopen the issue of relevance.
At hearing, respondent acknowledged that its claims of privilege for most of the information sought were unjustified, and confined its claims of confidentiality to the contracts with labor contractors, land owners and growers, and to the names of non-union applicants. Because respondent failed to specify in any but general terms the confidential interests involved, those claims were rejected.
As for its contention that the information sought was in the hands of third parties and therefore unavailable, Respondent failed to offer the requisite sworn testimony that it did not have possession or control of the information and that it had attempted to obtain it from those third parties and been rebuffed. Furthermore, the evidence established that Antle and Dole functioned as a single integrated enterprise, such that the information available to one was available to the other.
With respect to information sought concerning the grievance arising in Arizona, the ALJ found that there was insufficient evidence that the respondent’s actions in Arizona adversely affected any California rights of the workers involved. He therefore dismissed the allegation.
See Bud Antle, Inc., Case No. 2012-CE-007-SAL.
Board Issues Decision in Gerawan Farming, Inc., Case No. 2013-MMC-003 (April 16, 2013)Background
The United Farm Workers of America (“UFW”) filed a declaration on March 29, 2013 requesting Mandatory Mediation and Conciliation (“MMC”) with the employer, Gerawan Farming, Inc. (the “Employer”) pursuant to Labor Code section 1164 (a)(1). The Employer timely filed an answer to the declaration opposing referral to MMC. The Employer argued that the declaration should be dismissed asserting that the UFW failed to meet the requirements of Labor Code 1164.11, forfeited its rights by abandoning the employees it had been certified to represent, and that the MMC process violated the Employer’s constitutional due process rights. The Employer requested that an expedited hearing be held to resolve factual disputes if the declaration was not dismissed.Board Decision
The Board referred the case to MMC finding that all the statutory requirements for referral to MMC were met. The Board held that, contrary to the Employer’s assertion, the UFW was not required to show that it bargained in good faith for at least one year after the initial request to bargain. The Board noted that Labor Code section 1164.11, subdivision (a) contains no “good faith and sustained effort to bargain” requirement but requires only that the parties failed to reach an agreement for at least one year after the initial bargaining request. The Board held that the unfair labor practice (“ULP”) cases identified by the UFW (Gerawan Ranches (1992) 18 ALRB No. 5 and Gerawan Ranches (1992) 18 ALRB No. 16), which involved multiple ULPs committed in connection with the election through which the UFW was certified, including a refusal to bargain in the post-election, pre-certification period, were sufficient to show that the Employer committed ULPs within the meaning of Labor Code 1164.11. Citing well-established precedent, the Board held that the Employer’s argument that the UFW had forfeited its rights by allegedly abandoning the workers was not legally viable. The Board held that, under Article III, Section 3.5 of the California Constitution, which bars administrative agencies from declaring a statute unconstitutional absent an appellate court decision, the Board did not have authority to rule on constitutional arguments raised by the Employer. Finally, the Board ruled that there were no factual disputes that warranted the setting of an expedited hearing.
Board Issues Decision in D'Arrigo Bros. Co. of California, Case Nos. 2010-RD-004-SAL and 2010-CE-050-SAL (April 10, 2013)Background
On November 2, 2010, agricultural employee Alvaro Santos filed a decertification petition with the Salinas Regional Office seeking the ouster of the incumbent representative United Farm Workers (UFW) at D'Arrigo Bros. of California. The employer is located in Monterey and Imperial Counties and has 1,665 employees. An election was held on November 17, 2010, in Spreckles, Gonzalez and Calipatria, California. The regional director impounded the ballots pending investigation of an unfair labor practice charge filed by the incumbent union UFW. The UFW filed objections to the election on November 24, 2010. On February 24, 2011, the Salinas Regional Director issued a complaint against D’Arrigo Bros. alleging that, since October 27, 2010 and continuing, the employer initiated, participated in, aided, and/or gave support to the decertification campaign against the certified union UFW. On March 11, 2011, the Executive Secretary issued his order on the UFW’s election objections. Neither party filed a request for review. On March 15, 2011, the Executive Secretary consolidated the election objections and unfair labor practice complaint as each had the same or some of the same basis for the petition and complaint.ALJ Decision
Following a hearing in the consolidated election and ULP case, the administrative law judge (ALJ) held D’Arrigo Bros. of California (D’Arrigo) violated section 1153, subdivision (a) of the Agricultural Labor Relations Act (ALRA) by instigating a decertification petition and supporting and assisting the gathering of signatures for the petition in five crews. In addition, the ALJ found that D’Arrigo’s delay in providing an address list for a group of laid off workers interfered with their right to receive adequate notice of the election. The ALJ further concluded that D’Arrigo’s unlawful or objectionable conduct tainted the entire decertification process, thus warranting the setting aside of the decertification election and dismissal of the decertification petition. D’Arrigo timely filed exceptions to the ALJ’s decision. The United Farm Workers (UFW) filed one exception, arguing that the ALJ erred in ruling that the UFW’s request for mandatory mediation and conciliation (MMC) as an unfair labor practice remedy was not yet ripe.Board Decision
The Board reversed the ALJ’s decision with regard to four issues: 1) Because the record reflected no connection between the actions of D’Arrigo’s Labor Relations Manager John Snell in suggesting decertification to one employee and the eventual decertification effort, the Board found that no unlawful instigation was proven; 2) The Board found that there was no unlawful delay in providing an address list for the workers laid off the week of November 13, 2010, because it was not shown that the brief delay prevented the mailing of an election notice to those employees; 3) The Board found that the actions of machine operator Florentino Guillen in soliciting signatures during lunch time could not be imputed to D’Arrigo because the evidence did not establish that he reasonably would have been viewed as acting on behalf of management; and 4) The Board found that the ALJ erred in ruling that the attorney-client privilege applied to meetings between UFW counsel and union member witnesses. However, the Board also found that D’Arrigo failed to demonstrate how it was prejudiced by the ruling. Finding this case analogous to Gallo Vineyards, Inc. (2004) 30 ALRB No. 2, the Board found that its affirmance of unlawful assistance in four crews, about 10 percent of eligible voters, was sufficient to warrant dismissing the decertification petition and setting aside the election. Lastly, the Board rejected the UFW’s contention that referral to MMC is an available remedy in an unfair labor practice case. Under new subdivision (a)(4) of the Agricultural Labor Relations Act (ALRA) section 1164 enacted in 2011, a union may request referral to mandatory mediation and conciliation (MMC) sixty days after a Board decision dismissing a decertification petition due to unlawful employer assistance in the filing of a decertification petition. The Legislature chose to expand the MMC provisions rather than expand the Board’s remedial authority.Concurrence and Dissent
Member Mason concurred with the majority in all respects with the exception of the conclusion that the record supports invalidating the decertification petition and setting aside the election. Member Mason would overrule Gallo Vineyards, Inc. (2004) 30 ALRB No. 2 and find that the unlawful assistance proven in this case was insufficient to invalidate the decertification petition. He would instead order that the ballots be counted and, in light of the tally of ballots, evaluate the effect of the unlawful assistance on free choice in the election itself under the outcome-determinative standard normally applied to election misconduct.
Office of Administrative Law Approves Regulations To Implement Senate Bill 126
On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code sec. 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.
Subsequent Histories Table
The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.
See Subsequent Histories Table for updated page.
2010 and 2011 Case Digest Supplements
The supplements to the ALRB Case Digest for Volume 36 (2010) and Volume 37 (2011) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.
Case Digest Merged
The Case Digest and its supplements through 2011 have been merged into one document.
See ALRB Case Digest.